Thursday, October 29 2009

WE broadly support the idea behind the Government’s Evidence (Amendment) Bill 2009, but we say Opposition concerns about its constitutionality must be carefully considered. The Bill was resurrected in the Senate on Tuesday where it had sat since being first introduced in May when introduced by the then attorney general Bridgid Annisette-George.

The Bill allows for the saving of witness statements made via audio or video recordings, and for the admissibility of oral statements made previously by a witness which later prove to be inconsistent with his new testimony.

It also allows for bad character evidence.

We say the Bill is most timely given the spate, or rather the epidemic, of murder trials in this country which collapse when witnesses later recant their previous testimony against the accused. This is the result of a vicious criminal assault on the administration of justice which has been going on for far too many years now and it threatens to become an entrenched way of life, unless some radical intervention is made to protect the integrity of this country’s judicial system. The country’s murder-rate as of yesterday stands at 434 people.

We endorse the words yesterday to the Senate of Attorney-General John Jeremie, “There has been a marked increase in the number of criminal trials which have been aborted or discontinued where witnesses have refused to give evidence or have recanted on previously given evidence or statements. Often witnesses who have previously given statements to the police and given evidence at the preliminary inquiry, absent themselves at the trial or having appeared, recant their original version of the events or face significant lapse of memory surrounding these events,”

Of course, Jeremie was euphemistic in referring to “memory loss,” which we will clearly translate as being the intimidation of witnesses, often by the murder-accused’s colleagues, this being yet another awful effect of the country’s problem of mushrooming criminal gangs.

While the Government has otherwise laudably moved to try to bypass the need to rely on the evidence of witnesses in favour of using scientifically-garnered evidence — such as by passing the DNA Bill — nevertheless there will always be some need for witness testimony.

So there is definitely a need for the Bill to allow the consideration of testimony given by witnesses at that moment of righteous indignation, before they are threatened to recant, or to “forget.”

The main question facing the Senate is whether or not the Bill violates the constitutional right of an accused person to a fair trial.

While the Bill allows the lodging of evidence at the court for safe-keeping against witness intimidation, on the other hand, it must be carefully determined whether the Bill also allows an accused person a fair right to cross-examine these statements? That is the crux of the debate.

The Senate saw some divergence of views as to whether the Bill needs to be passed by a special majority, with AG Jeremie even overturning the Government’s previous view that a special majority of votes were needed to pass the Bill, which he now says requires only a simple majority.

We recall that a similar debate over the rights of the society versus the rights of the accused was held in 2007 when Parliament debated and approved the Evidence (Amendment) Bill 2006 regarding the admissibility of hearsay evidence.

We anticipate a keen debate on the current Bill when the Upper House resumes on Monday. Of course, we note Opposition Senator Wade Mark’s suggestion that the Bill be sent to a parliamentary joint select committee (JSC) of “the best legal minds” to thrash out the fine-points of the Bill, especially its constitutionality.